VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1802/2018
	
CATCHWORDS	
Application for review pursuant to section 185 of the Local Government Act 1989; special charge scheme; works include rural standard road construction including drainage; whether no special benefit; whether distribution unreasonable; whether works and projects proposed are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly having regard to the locality or environment and to the probable use of the road or drainage of the land.	

APPLICANTS	Sana Kojicin & others	
relevant authority 	Nillumbik Shire Council	
SUBJECT LAND	Fordhams Road Special Charge Scheme
ELTHAM  VIC  3095	
WHERE HELD	Melbourne	
BEFORE	Carol Daicic, Presiding Senior Member
Justine Jacono, Senior Member	
HEARING TYPE	Hearing	
DATE OF hearing	26 - 27 August 2019	
DATE OF ORDER	17 April 2020	
CITATION	Kojicin v Nillumbik SC [2020] VCAT 493	

Order
Amend VCAT application 
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended to be a joint application for review by the following persons:
•	Sana Kojicin
•	Maria Keon and Damon Grant
•	Anna Nichols and Steve McIntosh
Tribunal orders
2	The application under section 185 of the Local Government Act 1989 is dismissed.
3	The decision of the relevant authority is affirmed and the Fordhams Road Special Charge Scheme declared by the Nillumbik Shire Council on 24 July 2018 is confirmed.

Carol Daicic
Presiding Senior Member		Justine Jacono
Senior Member	

Appearances
For joint applicants	Sana Kojicin of 29 Fordhams Road, Eltham, as spokesperson on behalf of herself and the following four applicants:
•	Maria Keon and Damon Grant of 19 Fordhams Road, Eltham;
•	Anna Nichols and Steve McIntosh of 15 Fordhams Road, Eltham. 	
For relevant authority	Peter Lucas, solicitor, Macquarie Local Government Lawyers. He called the following witnesses:
•	Patrick Wood, Council Officer, Nillumbik Shire Council;
•	Milton Cations, Managing Director, Property Dynamics.	

Information
Description of Proposed Scheme	Fordhams Road Special Charge Scheme	
Nature of Proceeding	Application under s 185 of the Local Government Act 1989 – seeking to review the decision of the relevant authority to impose a special charge scheme on the grounds in sections 185(2)(b)(i), (ii) and (iv).  	
Review sites	The application for review is made in respect of three properties included in the Fordhams Road Special Charge Scheme described as follows:
15 Fordhams Road, Eltham
•	Developed with a single storey contemporary house with attached carport on a well treed block. The site is on the low side of the road and has significant fall from the front to the rear. 
19 Fordhams Road, Eltham
•	Single storey contemporary house and studio plus shedding and landscaping. The site is well treed and is on the low side of the road and has significant fall from the front to the rear.
29 Fordhams Road, Eltham
•	Single storey conventional style 43 bedroom dwelling on a well treed block. The site is on the low side of the road and has significant fall from the eastern side boundary to the western side boundary. 	
Planning scheme	Nillumbik Planning Scheme (planning scheme)	
Zone, overlays and particular provisions	Clause 32.03 - Low Density Residential Zone 
Clause 42.03 - Significant Landscape Overlay (Schedule 2, Schedule 3 and Schedule 7)
Clause 43.02 - Design and Development Overlay (Schedule 1)
Clause 44.06 - Bushfire Management Overlay
Clause 52.17 (Native vegetation)
Clause 52.29 (Land adjacent to a Road Zone, Category 1)	
Policies identified	Clause 15.03-2S (Aboriginal cultural heritage)
Clause 22.06 (Roadside Management Policy).
Clause 22.10 (Eltham Gateway Policy)
Clause 22.12 (Neighbourhood Character Policy)	
Land description	The review sites are located on the northern side of Fordhams Road to the west of the intersection with Metery Road in Eltham in an area known as the Eltham Gateway.
The properties are also in an area characterised by a natural bush and semi-bushland setting, where native vegetation dominates the skyline and gardens are mostly indigenous and native plantings combined with remnant vegetation. Buildings can be obscured from view and blended into the bushland landscape. Gardens are continuous with roadside and surrounding property vegetation where there are no solid fences or of post and wire construction.
Surrounding land uses and development generally comprise standalone residential properties located in a Low Density Residential Zone and Neighbourhood Residential Zone. There are various educational institutions near the review sites including a kindergarten on the north west corner of Fordhams Road and Metery Road, and primary and secondary schools nearby. 
The Eltham Cemetery is located to the east side of Metery Road and the well known artists’ colony and popular tourist attraction, Montsalvat.
The nearest retail and commercial centre is located in Eltham, approximately 1.5km to the north of Fordhams Road. The area is serviced by public transport via bus and rail.  	
Tribunal inspection	An inspection of Fordhams Road and the surrounding area was conducted after the hearing.	
Scheme Overview	The Fordhams Road Special Charge Scheme involves the construction and drainage of Fordhams Road to a rural standard with open drains and a sprayed seal surface.
The majority of the road is unsealed with no underground drainage, comprising compacted crushed rock, except for approximately 56 metres (near the intersection of Fordhams and Metery Roads) that is sealed.
There are 19 properties including one Council owned property and approximately 346 metres of road to be constructed at a total scheme cost of $325,682.18. 
Of the total scheme cost, 25% is apportioned by each property’s frontage multiplied by an abuttal rate per metre of $116.05. An Access Benefit Cost of $12,855.88 is then added to each property that makes up the remaining 75% of the scheme cost ($12,855.88 by 19 properties equals a total Access Benefit Cost of approximately $244,262).
The land owned by the joint applicants abut the unsealed section of Fordhams Road and the total cost of the charge for 15, 19 and 29 Fordhams Road is $17,524.56, $15,190.80 and $15,190.80 respectively.	

Reasons
What is this proceeding about
1	The Nillumbik Shire Council (Council) has imposed a special charge to upgrade Fordhams Road to a sealed road of rural standard construction (Fordhams Road Special Charge Scheme) pursuant to section 163(1) of the Local Government Act 1989 (LG Act). 
2	This proceeding relates to the application for review by certain land owners affected by the special charge under the Fordhams Road Special Charge Scheme against the Council’s decision pursuant to section 185 of the LG Act. 
3	The joint applicants for review are:
a.	Sana Kojicin of 29 Fordhams Road, Eltham;
b.	Damon Grant and Maria Keon of 19 Fordhams Road; and
c.	Anna Nichols and Steven McIntosh of 15 Fordhams Road.
(together, the joint applicants). 
statement of grounds
4	The joint applicants rely on the following specific grounds of review pursuant to section 185 of the LG Act:
a.	Section 185(2)(b)(i) – the works for the purposes of which the special charge was imposed will not provide a special benefit to the applicants. 
b.	Section 185(2)(b)(ii) – the basis of the distribution of the charge amongst those persons who are liable to pay it is unreasonable. 
c.	Section 185(2)(b)(iv) – the works proposed for the construction of a road are unnecessary, excessive and costly, having regard to its locality. 
5	On 3 May 2019, the joint applicants further and better particulars of the grounds relied upon. These are referred to below. 
preliminary matters
6	We have amended the application for review by changing the name of the applicant to the names of all the joint applicants for review. Mr Kojican represented all the joint applicants at the hearing. No party opposed this. 
7	We record that it was agreed by the joint applicants prior to the commencement of the hearing that the joint applicants intend to rely on the same statement of grounds because the impacts were said to be essentially the same on each of the properties. In accordance with that agreement, the Tribunal did not require separate applications for review to be filed by each joint applicant. The Council did not oppose this.  
8	This being the case, it was not put to us at the hearing that any particular ground relied upon impacted the joint applicants or their respective properties differently or to a greater or lesser extent on an individual basis. 
9	We have proceeded on the basis that the grounds are relied upon collectively by the joint applicants and that for all intents and purposes, our findings apply to the same extent to each of the three joint applicants and their respective properties. And so, whilst there are no separate findings for each respective property, we have turned our minds to each of the three joint applicants and their respective properties in our consideration of this matter.
what this proceeding is not about
10	This is not an application pursuant to section 185AA of the LG Act where a person may apply to the Tribunal for a declaration concerning the validity of a decision referred to in section 185(1) of the LG Act. 
11	This was confirmed with the joint applicants as a preliminary matter at the commencement of the hearing.
12	Nevertheless, the joint applicants made a number of submissions during the hearing, including that:
a.	the Council adopted the new Special Charge Scheme Policy after the declaration of the Fordhams Road Special Charge Scheme; and
b.	the Council added drainage to the Fordhams Road Special Charge Scheme after the public notice of its intention to declare the scheme for Fordhams Road for road sealing (as opposed to other additional works) was published. 
13	These submissions more appropriately go to the question of validity of the decision of the Council to impose the Fordhams Road Special Charge Scheme. The question of the validity of the Council’s decision to impose the Fordhams Road Special Charge Scheme is not a matter before us. We have proceeded on the basis that the decision of the Council is valid.  
background
14	The history of the Fordhams Road Special Charge Scheme was detailed in the Witness Statement of Patrick Wood, Design Coordinator, Nillumbik Shire Council. 
15	Fordhams Road is a municipal road under the jurisdiction of the Council. Aside from a short section of Fordhams Road (56 metres) from the intersection with Metery Road, Fordhams Road is unsealed with no underground drainage. It consists of crushed rock road pavement and has an average width of 3.5 metres with on shoulder and grassed verges, leading into open table drains on both sides of the road. The surrounding streets and roads are constructed with a sealed pavement but there is little underground drainage in place. 
16	Patrick Wood gave evidence that Fordhams Road requires maintenance, grading and reactive maintenance works to fill potholes and clean table drains, particularly after inclement weather and that the Council receives complaints of dust during dry periods. 
17	According to Patrick Wood’s statement, in March 2017, the Council received a petition by a number of property owners in Fordhams Road requesting that the Council investigate road sealing. 
18	After conducting a survey and determining that over 60 per cent of property owners support road sealing, the Council resolved on 28 November 2017 to proceed with the consultation process for the Fordhams Road Special Charge Scheme, Eltham “with a rural standard of construction”.
19	On 29 May 2018, the Council resolved to commence the statutory process for a Special Charge Scheme for Fordhams Road. 
20	On the 6 June 2018, public notice of the scheme was given.
21	At the time, the Council had in place the ‘Special Rates and Charges Policy for Roads and Drainage’ (Policy). The Policy would have ordinarily required the construction of the road at Fordhams Road to an urban standard given the locality and surrounds. 
22	Following the public notice period, the Council received six submissions, five opposing the scheme and one in support of the scheme. 
23	On 31 July 2018, the Council resolved, amongst other things that:
a.	The Fordhams Road Special Charge Scheme applies to the properties identified in Fordhams Road. This included No 15 Fordhams Road, No 19 Fordhams Road and No 29 Fordhams Road. 
b.	The apportionment cost to each property be based on the method shown in the report supporting the proposed scheme. 
c.	The total estimated cost to each property may be paid as lump sum or by instalments over a 10 year period with interest applied.
d.	The estimated total project cost is $325,682 with a benefit ratio of 0.9556 (95.56 per cent). The total amount being levied under the special charge is $311,213 with the Council contributing $14,469 for a Council owned property at 620 Main Road.
e.	Within 12 months of the completion of works a final cost statement will be issued to all property owners in the Fordhams Road Special Charge Scheme and any adjustments to liabilities will be made at the time. 
f.	the submitters and objectors be advised of the Council’s decision and reasons.
24	In August 2018, the Council declared a new policy ‘Special Charge Schemes for Road and Drainage’ which allowed for a rural standard of construction on the proviso that drainage could be adequately managed. 
25	Patrick Wood stated that in agreeing to construct the road to a rural standard, the Council was satisfied that issues of safety, drainage, bank erosion and dust generation were addressed, and that the rural standard would be consistent with neighbourhood character.
the scheme
26	Fordhams Road comprises approximately 402 metres of roadway with the majority of the road being unsealed (346 metres), containing crushed rock with no underground drainage. There is a small section of 56 metres near the intersection of Fordhams and Metery Roads that is sealed.
27	The Fordhams Road Special Charge Scheme involves the construction and drainage of Fordhams Road to a rural standard with open drains and a sprayed seal surface (the Works).
28	The total scheme cost is $325,682.18 and is apportioned across the 19 properties in the scheme, including one Council owned property. The apportionment is calculated on a two-method basis, that is, two different methods are applied and added together. The first method is derived by calculating 25% of the total scheme cost. This is then apportioned by using each property’s frontage multiplied by an abuttal rate per metre of $116.05. Secondly, an Access Benefit Cost of $12,855.88 is then added to each property that makes up the remaining 75% of the scheme cost ($12,855.88 multiplied by 19 properties equals a total Access Benefit Cost of approximately $244,262).
29	As all joint applicants abut the unsealed section of Fordhams Road, they are included in the Special Charge Scheme. The total cost of the charge for 15, 19 and 29 Fordhams Road is $17,524.56, $15,190.80 and $15,190.80 respectively.
legislative framework
Power to impose a special charge
30	The joint applicants seek to review the decision of the Council to impose a special charge pursuant to section 163(1) of the LG Act. Section 163(1) of the LG Act states:
A Council may declare a special rate, a special charge or a combination of both only for the purposes of—
(a)		defraying any expenses; or
(b)		repaying (with interest) any advance made to or debt incurred or loan raised by the Council—
in relation to the performance of a function or the exercise of a power of the Council, if the Council considers that the performance of the function or the exercise of the power is or will be of special benefit to the persons required to pay the special rate or special charge.
Appeal provision
31	Section 185 of the LG Act provides:
(1)	A person may apply to VCAT for review of a decision of a Council imposing a special rate or special charge on that person.
(2)		The person must apply—
(a)	within 30 days after the date of issue of a notice to the person of the special rate or special charge; and
	(b)	on the ground that—
(i)	the works and projects or the period of maintenance for the purposes of which the special rate or special charge was imposed are not or will not provide a special benefit to that person; or
(ii)	the basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable; or
(iii)	if the planning scheme for the area contains any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are inconsistent with those policies or objectives; or
(iv)	if the planning scheme for the area does not contain any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.
(3)	On a review, VCAT may, by order—
(a)		vary the special rate or special charge declared by the Council in relation to its application to the applicant; or
(b)		set aside the special rate or special charge if satisfied that the ground in subsection (2)(b)(ii), (iii) or (iv) is established; or
(c)		dismiss the application and confirm the special rate or special charge.
(4)		If VCAT sets aside a special rate or special charge made in a particular year, the Council may declare and levy a new special rate or special charge for that year even if the year has ended.
[Tribunal emphasis]
32	Section 185AB of the LG Act sets out the matters that the Tribunal must take into account:
In determining an application for review or for a declaration under section 185 or 185AA, VCAT must—
(i)	take into account any relevant planning scheme; and
(b)	where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved by the Minister or the planning authority.
Statement of grounds
33	The Council correctly submits that the ground of review set out in section 185(2)(b)(iv) of the LG Act can only be made in the ‘alternative’ to section 185(2)(b)(iii), because section 185(2)(b)(iv) assumes the planning scheme for the area does not contain any relevant policies or specific objectives in relation to the construction of roads or the drainage of land. 
34	It is common ground between the parties that the ground of review in section 185(2)(b)(iv) of the LG Act is available to the joint applicants. This also reflects the grounds relied upon by the joint applicants.  
35	In conceding this, the Council submits and relies on the evidence of Patrick Wood that in preparing the Fordhams Road Special Charge Scheme, the Council took account of the relevant land zoning planning controls and Council policies affecting the land. 
36	We have proceeded on the basis that the planning scheme does not contain any relevant policies or specific objectives in relation to the construction of roads or drainage of land for the scheme area, or the locality more generally to the extent the joint applicants are able to rely on the ground set out in section 185(2)(2)(b)(iv). 
Tribunal powers relevant to this proceeding
37	By virtue of section 185(3) of the LG Act, the Tribunal may vary the special charge in relation to any or all of the joint applicants if the joint applicants are successful in establishing there is no special benefit to any or all of the joint applicants.
38	Further, the Tribunal may set aside the special charge if the joint applicants are successful in establishing that:
a.	the basis of the distribution of the rate or charge amongst those persons who are liable to pay the special charge is unreasonable; or 
b.	the works proposed for the construction, drainage and improvement of Fordhams Road are unnecessary, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.
39	If the Tribunal is satisfied that none of the grounds of review have been successfully established by the joint applicants, the Tribunal may dismiss the application for review and confirm the special charge. 
40	The Tribunal has previously noted in other special charge matters that it is readily apparent from the wording of section 185 that the ‘grounds’ of review available to an applicant under section 185(2)(b) are quite limited. Parliament has given Councils a fair degree of autonomy in the setting of special rates and charges, and deliberately restricted the basis upon which the declaration of a special rate or charge may be challenged. 
41	For the dispute in this proceeding, the joint applicants rely on the grounds in section 185(2)(i), (ii) and (iv). We will deal with these in turn.
first ground of review – special benefit
What is asserted?
42	In seeking a review of the Council’s decision, the joint applicants rely on section 185(2)(b)(i) which provides:
the works and projects or the period of maintenance for the purposes of which the special rate or special charge was imposed are not or will not provide a special benefit to that person; or …
43	The joint applicants stated in their first ground of review that ‘the works for the purposes of which the special charge was imposed will not provide a special benefit to the applicants’. 
Joint applicants’ submissions
44	The joint applicants submit that they will not receive a special benefit from the Works proposed for Fordhams Road. 
45	In response to a request for further and better particulars made on 3 May 2020, the joint applicants said:
We enjoy living on an unmade road. We value the unmade road as a rare and special rustic feature close to the city yet providing a distinctive rural feel. Any suggested negative impacts of an unsealed road are a non-issue for us. We do not want the road sealed. We cannot afford the excessive cost of having it sealed and as such derive no special benefit. On the contrary, for us, having the road sealed is a detriment because we would be forced to respectively pay tens of thousands of dollars, which we cannot afford, to have something we value taken away.
46	The joint applicants submit that their primary consideration is maintaining their existing level of amenity. They say that they fundamentally enjoy the amenity that the unmade road provides, they do not consider the unmade road to have any negative impacts, rather they see it as enhancing a rural and rustic environment. Furthermore, as they are unable to afford the costs imposed by the Fordhams Road Special Charge Scheme, they consider the sealing of Fordhams Road to be a detriment.  
47	The joint applicants relied on the Oxford Dictionary definition of ‘special benefit’ which was stated to be ‘an advantage or profit gained from something’. 
48	Losing the amenity afforded by the existing road is not seen as an ‘advantage’ particularly given the cost liability and any ‘profit’ gained will be determined on sale at the relevant time based on many factors. 
49	Further, the joint applicants submit that any special benefits asserted regarding such improvements in the management of dust, mud, car washing frequency or increase in land value as opined by the Council’s expert witness, at best, neutralise any net benefit and no where near outweigh the disbenefits. The disbenefits are considered to be tangible, such as loss of amenity and financial impact of charges, and intangible such as loss of rural haven;, and the ‘loss of feeling of home and place of peace and respite from a maddening world.’ 
Council’s submissions
50	In the Council’s submission, the principles of ‘special benefit’ were detailed with reference to relevant case law. A summary of the key principles outlined are as follows:
a.	A special benefit will exist when the property derives or can reasonably be expected to derive a benefit not shared by others not required to pay the special charge.
b.	The special benefit relates to the land.
c.	The special benefit is assessed in relation to the land and not the circumstances or needs of individuals.
d.	The test is objective and not subjective.
e.	Special benefit may be direct or indirect, immediate or in the future.
f.	The benefit does not need to be equal or proportionate. 
51	The Council submits that a number of special benefits will be derived from the Works under the scheme. From an engineering, infrastructure and property perspective, it says the following tangible benefits will accrue to each property affected by the Fordhams Road Special Charge Scheme as a result of the Works:
a.	improved amenity;
b.	dust suppression;
c.	improved access to property;
d.	sealed, smoother, all weather road to drive on; and 
e.	improved safety. 
52	The Council also relied on the Valuation Report of Milton Cations although the Council contended that an increase in the value of the land is not an essential criterion to demonstrate special benefit.
53	To summarise Milton Cations’ expert opinion, he concluded that a special benefit in monetary terms will be derived from the Works as set out below:
Review Site	Increased value	Allocated cost of scheme	Special benefit	
15 Fordhams Road	$47,438	$17,525	$30,000	
19 Fordhams Road	$33,000	$15,191	$18,000	
29 Fordhams Road	$35,250	$15,190	$20,000	

Tribunal findings
54	We agree with the statements of principle set out in the Council’s submission. 
55	What constitutes a ‘special benefit’ for the purposes of a special rate or special charge scheme was explained by Gibbs J (as he then was) in Parramatta City Council v Pestell (1972) where His Honour said:
A work is a special benefit to a portion of a local authority area if the lands comprising that portion derive from the work a benefit which is not shared by other lands or a benefit which is additional to, or greater than, that which is derived by other lands. 
56	The Tribunal has previously held that to succeed, it is necessary to show that no special benefit is derived from the proposed works or project (as distinct from the special benefit being less than that asserted by the council or even the financial burden placed on a particular applicant by a special charge being disproportionate to the special benefit actually derived). The onus falls on the joint applicants to demonstrate that no special benefit exists for the three properties. 
57	Further, in Potato Products Deputy President Dwyer said in relation to a scheme relating to the construction of another road scheme:
[16]	In both cases, I am satisfied that the servicing and road construction will provide a level of benefit to the abutting landowners not shared by other persons without a road abuttal. Indeed, it would be a rare situation (if ever) that abutting land did not receive a special benefit from the construction of a road, or that undeveloped land designated for future industrial use did not receive a special benefit from the provision of utility services.
58	It is also largely irrelevant that any of the joint applicants may not individually ‘need’ the proposed Works or consider that they offer any particular convenience to them provided that there is some direct or indirect special benefit to the land. We reject the submission by the joint applicants that the Works would not be beneficial to the residents. As the nineteen properties all have varying frontages to the section of Fordhams Road subject to the proposed Works, it is evident the proposed Works would benefit the land included in the Fordhams Road Special Charges Scheme not shared by landowners outside the scheme. A resident of Fordhams Road will have more occasion than somebody who merely visits to use the enhanced roadway which these Works will provide. It will also provide an enhanced residential amenity to those residents in Fordhams Road. 
59	Whilst the Tribunal agrees with the Council that it is not essential for an increase in property value to be demonstrated to show ‘special benefit’, if this was required then expert valuation evidence underpinned by properties that sold ‘before’ and ‘after’ the works had occurred would be more persuasive than professional judgement alone. However, understandably, valuers can only rely on sales that have actually occurred and analyse the sales evidence. In any event, we do not need to rely on the valuation evidence given our finding that a special benefit otherwise exists. 
60	We consider the tangible and intangible disbenefits put forth by the joint applicants are subjective as they are reflecting the circumstances and views of individuals rather than assessing whether or not the three properties receive any special benefit. 
61	We also do not agree with the submission put by the joint applicants that the monetary contribution required to be made under the special charge scheme would be better spent on renovating the existing improvements on the properties to enhance property value rather than through a special charge scheme. We accept Milton Cations’ opinion that not all properties will necessarily increase in value in those circumstances. In any event, this is not relevant to our considerations under section 185(2)(b)(i) as to whether a special benefit exists. 
62	Accordingly, we find that the joint applicants have not succeeded in establishing the first ground that the scheme would provide no special benefit to the land(s) under section 185(2)(b)(i) of the LG Act. We reject this ground of appeal. 
second ground of review - Unreasonable basis of distribution
What is asserted?
63	In seeking a review of the Council’s decision, the joint applicants rely on section 185(2)(b)(ii) which provides:
the basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable; or …
64	The joint applicants stated in their second  ground of review that ‘the basis of the distribution of the charge amongst those persons who are liable to pay it is unreasonable.’
Joint applicants’ submissions
65	In response to the request for further and better particulars, the joint applicants said:
We believe that the distribution of charges is unreasonable because, through its Special Charge Scheme Policy, Council applies a “one size fits all” distribution of costs. There is no apparent possible consideration or variation, minor or otherwise, to the distribution of charges as other Councils provide with respect to the level of special benefit to properties. While this may be simpler for Council to administer the scheme, it offers no level of flexibility or fairness to residents in varying circumstances. Council also fails to acknowledge the benefits it receives through the special charge scheme. Residents’ capacity to pay for the scheme bears no meaningful consideration in any aspect of this scheme. Financial hardship provisions appear limited, hidden and unsupported. 
66	Sana Kojicin relied on Vernau v Nillumbik Shire Council and contended that the same circumstances applied in that case as they do here, and that Council had failed to consider the amount of benefit received by the residents and the varying levels of benefit. 
67	In a question from the Tribunal, Sana Kojicin for the joint applicants was asked what the joint applicants would consider to be a reasonable basis of distribution given Council’s method of 25% calculated on each property’s frontage (abuttal) to Fordhams Road and 75% on Access Benefit is considered by the joint applicants to be unreasonable. Sana Kojicin put forth that a method calculating distance from the intersection of Fordhams and Metery Roads that took into consideration the usage of the road (as the western end of Fordhams Road has no access) would be fairer although Sana Kojicin stated that she had not considered the specifics beyond that option.
Council’s submissions
68	The Council submitted that the relevant test is not that there is another way of distribution of the special charge, but the joint applicants must show that the method that the Council has adopted is objectively unreasonable. Council’s submission cited a number of cases including Giuffrida v Manningham City Council [2005] VCAT 571. The then President, Justice Stuart Morris said:
It needs to be stressed that in reviewing a special rate in relation to this ground the relevant test is not whether the Council has achieved the optimum or the fairest possible outcome. As the tribunal said in Jacobsen v Shire of Flinders (1994) 12 AATR 207, the tribunal must be satisfied:
That the basis of distribution is unreasonable and not simply that there are different ways of apportioning costs which may also be reasonable. The tribunal must not substitute its decision for that of the council unless the council’s decision is clearly wrong.
Tribunal finding
69	In considering the meaning of the word ‘unreasonable’ there is often reference to the ‘Wednesbury’ principle.  The Wednesbury principle takes its name from the decision in Associated Provincial Picture House v Wednesbury Corporation where it was stated that if a decision was so unreasonable that no reasonable authority could ever have come to it, then the courts could interfere, but that this would require something overwhelming and would not arise just because the court had a different view to that of the local authority. It was said that the court should not set itself up as an arbiter of the correctness of one view over another and provided the local authority had acted within the four corners of its jurisdiction, the court could not interfere.
70	Deputy President Macnamara in Perrin v Westernport Water stated:
[22]	It is difficult to see therefore that something is "unreasonable" because it fails to achieve absolute perfection in equity. To put it another way it must be possible for there to be a number of different modes of distribution approaching absolute equity and scientific perfection to varying degrees but nevertheless in no case descending to the level of being "unreasonable". As I understood Mr Perrin, he suggested either that his contribution should be cut below the minimum $2,000 because his block is smaller than most in the scheme or alternatively there should be a single flat $1500 contribution for all households. The very fact that Mr Perrin suggested two quite different modes of distribution in itself demonstrates that even according to his view there can be a number of modes of distribution which are not "unreasonable" rather than merely one perfect mode with all other distributions being "unreasonable".
71	We are also reminded of the comments of the then President Justice Morris in Giuffrida:
[47] 	But having said all that, we must go back to what is the relevant test. Councils are elected. In that sense they stand in a morally superior position to the tribunal. It may be true that we bring greater expertise to the legal and engineering aspects of this particular issue, but that does not mean that we should regard the decision of the elected council other than with respect. Approaching the matter that way we are not satisfied that the method of apportionment used by the council is unreasonable. It is important to emphasise that when it comes to the apportionment of cost in relation to road construction or drainage works, there will be more than one method which is reasonable. Sensible people can devise different methods, all of which will be reasonable, with a slightly different emphasis in each method. We think that the council’s method is within the parameters of “reasonableness”; and we are not just using the word in the Wednesbury sense but in the natural sense of that word. The council has considered the different benefit that will be obtained by abutting and non-abutting landowners and its method has also sought to bring into play the different contributions that may have been made in the past by those landowners or their predecessors in title. True, as we have explained, we would have done it differently. But that is not sufficient. We are not prepared to find that the distribution of the rate amongst those persons liable to pay is unreasonable.
72	In that case, President Justice Morris found that the methodology was not irrational nor based upon a whim or caprice nor beyond the pale nor an act of madness or any other types of conduct that are sometimes used in the context of Wednesbury unreasonableness. 
73	More recently in McInnes & Ors v Boroondara CC, Deputy President Dwyer has confirmed the test is whether the Council’s decision in relation to be specific property is objectively unreasonable and not judged on the basis of ‘Wednesbury reasonableness’:
[91]	Again, it is not necessary to set out in detail the many principles that have been developed over the years in relation to the basis of distribution. I agree with the Council that:
•	whether the distribution or apportionment of a special rate or charge is unreasonable is not to be judged on the basis of ‘Wednesbury unreasonableness’, but it must nonetheless be based on a determination that the Council’s decision in relation to a specific property is objectively unreasonable;
•	there are no absolute rules about apportionment, and no single reasonable basis for distribution. There may be many bases for distribution that are all objectively reasonable when considered holistically across the scheme. The Tribunal should not allow an application for review merely because it considers a different basis for distribution to be better, preferable, ‘more’ reasonable, or fairer in its application to a particular ratepayer. The Tribunal has to be satisfied that the Council’s basis for distribution is unreasonable.
74	The Tribunal has also previously held that the ground in section 185(2)(b)(ii) cannot be used as a basis for arguing that other landowners should be included in the scheme, or as a basis for arguing that the Council should contribute more than the amount it is already contributing, or that the works should be funded by other means. The available ground only enables a review of the distribution as between those who are already liable to pay. To succeed in challenging the Council’s methodology for apportionment, the Tribunal must be satisfied that the basis for the distribution is objectively unreasonable, and not simply that there may be other alternative methods of apportionment that are reasonable or that are arguably fairer or ‘more’ reasonable.
75	Having regard to the statements of principles above, we consider that the test for whether or not the basis of distribution is ‘unreasonable’ to be very high. The test is not simply ‘is there another way of distribution’ which the joint applicants in essence are contending. In their view, the capacity to pay should have been considered as should have the benefit to the Council. Both these considerations are subjective and if relevant would be assessed from the viewpoint of the individual/organisation and not the land. 
76	We are satisfied that the underlying basis for apportionment using a combination of a calculation on property frontage and fixed cost basis of distribution of the Special Charge is a common method of apportionment for road construction and is objectively reasonable in the circumstances of this particular case. Whilst the joint applicants have proposed an alternate method, they have not succeeded in establishing that the method that Council has applied is objectively (not subjectively) unreasonable. 
77	For completeness, the Tribunal does not agree with the joint applicants’ view that the circumstances in Vernau are on all fours with the present case. Vernau involved considerations of two roads within the special charge scheme and so we consider that matter is distinguishable on its facts.
78	Accordingly, we find that the joint applicants have not succeeded in establishing the second ground that the basis of distribution of the rate or charge amongst those persons who are liable to pay it is unreasonable pursuant to section 185(2)(b)(ii) of the LG Act. 
third ground of review - Works are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly
What is asserted?
79	In seeking a review of the Council’s decision, the joint applicants rely on section 185(2)(b)(iv) which provides:
if the planning scheme for the area does not contain any relevant policies or specific objectives, the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.
80	The joint applicants stated in their third ground of review that ‘the works proposed for the construction of a road are unnecessary, excessive and costly, having regard to its locality.’ The written outline submissions tendered at the hearing contained submissions under the heading ‘Works unnecessary, unreasonable, excessive and costly’. 
Joint applicants’ submissions
81	In their response to further and better particulars, the joint applicants said:
Some Fordhams Road residents had petitioned Nillumbik Shire Council to investigate road sealing. Following the relevant processes Council went on to place a public notice in the local newspaper advising of its “Intention to declare a special charge scheme to construct road in Fordhams Road, Eltham”. The notice also stated that “The road construction involves the sealing of Fordhams Road, Eltham.” This is the only information provided in the statutory public notice about the proposed works. 
Subsequently Council proceeded to add drainage and the sealing of four meters of every driveway to the special charge scheme for which it had declared only “…the sealing of Fordhams Road…”. Also included in the plans for the special charge scheme are culverts, stone work and guide posts among other things. 
All the additional works Council has added beyond that which they were petitioned for and added post their publicly declared intention is unnecessary, unreasonable, excessive and costly. 
82	The joint applicants’ main contention to support that the Works are unnecessary, unreasonable, excessive, insufficient, unsuitable and costly are centred around drainage issues beyond Fordhams Road that have not been addressed or maintained that are causing drainage problems to Fordhams Road. Sana Kojicin’s Outline of Submission stated that ‘We strongly believe that Council must first fix the uncontrolled drainage flows from higher lands…’. The joint applicants consider that the scope of the works transcend the sealing of the road and include the rectification of drainage and other maintenance items that are core functions of Council and should be costed in general rates and charges or other funding for the protection of Council’s assets. 
83	The joint applicants also sought to agitate a number of issues that concern the validity of the decision by Council to impose a special charge. For example, the joint applicants submitted that the addition of drainage ‘part way through the special charge scheme process and in addition to what they were petitioned for is unreasonable because much of the drainage issues stem from Metery Road and beyond’. 
84	In another example, the joint applicants submitted that the inclusion of culverts, rock head walls and sealing of 4 metres of driveways by Mr Wood’s witness account, were added later to the special charge scheme in order to protect the Council’s potential asset. They submit that the residents did not petition for this and yet the Council included this for its own benefit at special rate payers expense. 
85	The joint applicants submitted that the proposed scheme as it stands is far too costly because additional types of work have been added beyond which were petitioned for by residents. They also provided an independent quote for the proposed works in the Special Charge Scheme of $262,234.50. The quote was said to be based on Council’s draft design plans. No witnesses were called or supporting documentation provided to substantiate the quotation.
Council’s submissions
86	In summary, the overarching principles that the Council contend are:
a.	The test for this ground is like other grounds objective and not subjective;
b.	The assessment of unnecessary, unreasonable, excessive, insufficient, unsuitable or costly is from the viewpoint of the Responsible Authority and not the Contributor; and
c.	The Tribunal’s role is not to go into the minute detail but to assess whether or not the works are completely mismatched to the problem to be resolved.
87	The Council supported their position that the proposed works were not unnecessary, unreasonable, excessive, insufficient, unsuitable or costly by contending the following points:
a.	the road and drainage conditions have been unsatisfactory for a long period of time;
b.	there has been a history of complaints from owners/occupiers;
c.	the works are to appropriate standards; and
d.	the costs will go to tender to be market tested.
Tribunal findings
88	We find that the Works are not unnecessary, unreasonable, excessive, insufficient, unsuitable and costly. Our reasons follow.
89	The ground for review pursuant to section 185(2)(b)(iv) arises only as an alternative to the ground in section 185(2)(b)(iii), if the planning scheme for the area does not contain any relevant policies or specific objectives, on the basis that the works and projects proposed for the construction of a road or for the drainage of any land are unnecessary, excessive, insufficient, unsuitable or costly, having regard to the locality or environment and to the probable use of the road or drainage of the land.
90	We have proceeded on the basis that the ground in section 185(2)(b)(iv) is available to the joint applicants given this was conceded by the Council and our review of the planning scheme material tendered by the parties confirms this in our view.
91	The Tribunal has previously held that ground (iv) should be interpreted on the basis of whether the proposed works are unreasonable, unnecessary and so forth, having regard to the actual purpose and function of the works from the viewpoint of the responsible authority, rather than being assessed from the viewpoint of a person liable to pay the special charge. This is an objective test.
92	Further, ground (iv) does not require the Tribunal to examine the minute detail of the cost effectiveness of all the design decisions made in a Council engineering project. Rather, the question to be resolved is whether or not the works proposed are excessive because they are completely mismatched to the problem to be resolved.
93	Taking these principles into account, the Tribunal does not consider the inclusion of a drainage element within the construction of the road to be unreasonable; to the contrary it might be said that it is unreasonable to construct a road without reference to drainage. Council could have also sought to construct the road to urban rather than rural standards. Constructing the road to rural standards can be said to be more in support of reasonableness and consideration of suitableness and costs rather than the opposite view.
94	At the heart of the joint applicants’ view that the proposed Works are fundamentally unreasonable and unnecessary, is their opinion that Council has failed in their duty to undergo maintenance of drainage and roads in the immediate area as part of general rates and charges. However, it is not up to the Tribunal to look behind the history and events leading up to Council’s decision to consider the special charge. The question is whether or not the proposed Works are incompatible to the issues to be resolved, not that there may be other methods of resolution. Such matters including those that challenge the process followed by the Council are appropriately addressed by way of an application for a declaration under Section 185AA of the LG Act. This is not before us. The joint applicants conceded at the start of the hearing and were reminded on several occasions that an application relating to the validity of a decision was not before the Tribunal and only issues relating to a review of the decision under Section 185 of the LG Act, could be and would be considered.
95	We do not support the view that the upgrade of Fordhams Road may be ‘unnecessary’ because the unsealed road already exists. We generally accept the Council’s contention that there is a demand for Fordhams Road to be sealed. The Council has described this as an ‘owner led proposal’ in that the residences petitioned Council for the works to be done with greater than 60% of the property owners in favour of the proposed Works. We accept that the sealing of the road will provide safer access for all and improve amenity problems such as dust. For similar reasons, we do not consider that the proposed upgrade to the road is unreasonable, excessive, insufficient or unsuitable having regard to its location and likely use.
96	Here, it cannot also be said that the Works proposed for the sealing of the road to a rural standard are completely mismatched to the problem to be resolved. Amongst other things, the sealing of the road will facilitate pedestrian and vehicle access, it will provide an all-weather surface that will decrease dust (and mud) problems and improve safety issues.
97	In relation to the costs of the Works, the question under section 185(2)(b)(iv) is whether the Works, rather than the estimate of the cost of the Works, are unreasonable, excessive and unsuitable in the circumstances. The question of the actual costs is adjusted when the actual costs become known. Estimates, even if they are faulty, are not the basis for review. 
98	The Tribunal does not consider that the proposed works are unnecessary, unreasonable, excessive, insufficient, unsuitable or costly and we reject that the ground pursuant to section 185(2)(b)(iv) has been made out. 
Are there any other issues?
99	Section 185AB of the LG Act requires the Tribunal when considering a review application under section 185 to have regard to any planning scheme and, where appropriate, any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act1987 but not, as at the date the application was determined, approved by the Minister.
100	The Tribunal has previously found that for section 185(2)(b)(iii) to apply to the exclusion of (iv) there must be sufficiently relevant policies (rather than just general state-wide or municipal-wide policies) and specific objectives (rather than general or broad municipal-wide objectives) in the planning scheme that relate sufficiently to the works or projects comprised in the special charge scheme under review. Although this may be a matter of fact and degree in particular cases, that does not arise here. The Council concedes that there are no relevant planning policies or specific objectives and as such the joint applicants can rely on the ground set out in section 185(2)(b)(iv) of LG Act. 
101	In forming the view that it is open to the joint applicants to rely on section 185(2)(b)(iv) as was put to us by the parties, we are satisfied that we have met our obligations under section 185AB of the LG Act. 
102	Whilst we do not consider it necessary given the submissions received in this case, if we are wrong in that regard and we are required to have regard to the planning scheme and amendments more generally in the broader strategic context in considering the acceptability of the Works proposed under the Fordhams Road Special Charge Scheme, we make the following observations and findings. 
103	In our view, it has not been demonstrated by the joint applicants that the Works are inconsistent with the relevant policies and objectives in the planning scheme.  This is because whilst there are various policies which favour retention of the semi-rural amenity of the area, this objective can be achieved with a sealed road as proposed with appropriate construction techniques to avoid the loss of vegetation. We observed on our site inspection the local area and environment where the construction of a sealed road to a rural standard will comfortably fit in with the neighbourhood character. We reject the notion that kerb and channel in themselves will destroy the level of amenity sought be residents with properties located in a Low Density Residential Zone and affected by the overlays and controls under the planning scheme as is the case here.
covid-19 pandemic
104	Due to the declaration of a State of Emergency in the Victoria arising from the COVID-19 pandemic, there has been substantial disruption to Tribunal services due to reallocation of member and registry resources. This has contributed to the delay in the delivery of this decision. We trust the understanding of the parties in this regard.
conclusion
105	For the reasons given above, the decision of the Council is affirmed and the special charge scheme is confirmed. 

Carol Daicic
Presiding Senior Member		Justine Jacono
Senior Member